THE TREND in press and broadcast commentary about the Iraqi High Tribunal has been to describe the proceedings as a judicial train wreck, presided over by a weak judge who has lost control of the courtroom. But this characterization is based on several glaring misconceptions about the tribunal. As an expert in war crimes trials who trained the Saddam Hussein trial judges and heads up the tribunal’s Academic Consortium, I want to take this opportunity to clear the record before the myths become set in stone.

Americans viewing the gavel-to-gavel broadcasts of the Hussein trial must recognize that this is an Iraqi tribunal, though it employs the definitions of crimes and the due-process rights developed by the international criminal tribunals. In the Iraqi legal tradition, lawyers employ a far more boisterous courtroom demeanor than we are used to, often shouting at opposing counsel, the witnesses, and the judges. In addition, under the Iraqi Civil Law Inquisitorial system, the defendants as well as their lawyers are permitted to address the court and the witnesses. Therefore, presiding Judge Rizgar Mohammed Amin is not losing control of his courtroom when he permits this conduct; rather he is conducting the trial in accordance with the system under which he has worked as a judge for 30 years.

Far from a train wreck, in just five trial days, the prosecutor has completed an opening statement and the judges have taken testimony from nine witnesses, a very efficient pace even by American judicial standards. With 40 witnesses still to go, the prosecution has already proven the scale of the atrocities, the direct involvement of several of Hussein’s co-defendants, and the command hierarchy, all the elements necessary for a conviction in this case.

It was a terrible tragedy that two of the defense attorneys (who had refused the government’s offer of security) were killed just after the trial began. But Amin succeeded in crafting a compromise under which the defense counsel have been assigned personal body guards of their choosing, and their families have been moved out of the country for their protection, which should ensure their safety for the remainder of the trial.

As to who is winning the battle of wills between Hussein and Amin, the public needs to know that Hussein’s disruptive and disrespectful conduct is a common defense tactic, not just in international trials or Iraqi trials, but also in high-profile domestic trials even in the United States. Perhaps the most notable example was the infamous Chicago Seven Trial, in which Abbie Hoffman, Bobby Seale, and other leaders of the antiwar movement employed every gimmick imaginable to disrupt their trial for conspiring to cause riots during the 1968 Democratic National Convention in Chicago. It is no coincidence that Hussein’s American lawyer, Ramsey Clark, had been an adviser to the defense team in the Chicago Seven trial.

It is also noteworthy that Hussein’s most outrageous outbursts followed the emotionally compelling testimony of the first female witness to recount Hussein’s atrocities. Hussein knew that her tearful presentation could be extremely damaging to his standing among Iraqi Sunnis unless he could find a way to quickly distract media and public attention from it. So he told the judge to ”go to hell,” and announced that he was boycotting the reminder of the trial.

Consistent with international standards of due process, Amin could have Hussein hauled into the courtroom and placed in a glass booth, as Adolf Eichmann was at his trial in Israel, to prevent him from interrupting the trial with outbursts. But that would only add to the appearance of injustice, which Amin is trying to avoid. So when Hussein chooses to ”boycott” the trial, Amin has arranged for Hussein to follow the proceedings by video link from the detention center, an approach consistent with international standards that the Rwanda tribunal and special court for Sierra Leone have employed. Not surprisingly, Hussein’s boycott was shortlived, as he realized he could score more points from within the courtroom.

Amin may be portrayed in the Western media as an ineffectual judge, but in Iraq he is getting high marks for the conduct of the trial, especially for his judicial temperament.

Michael Scharf is professor of law and director of the International Law Center at Case Western Reserve University School of Law.

The Case Against Amnesty for Hussein By Paul R. Williams, Chicago Tribune, February 14, 2003

In an effort to avert a war, Iraq’s neighbors have opened up the possibility of amnesty and comfortable exile for Saddam Hussein and his family. The U.S. government appears on the verge of considering this option in an effort to demonstrate its willingness to consider alternatives to the use of force.

While Iraq’s neighbors and our European allies are likely to be genuinely enthusiastic about the possibility of amnesty and exile for Hussein, the United States must not be seduced by the possibility of an apparently expedient solution to the difficult problem of meaningful regime change in Iraq. The open consideration of an offer of amnesty is fraught with serious consequences for American foreign policy.

Despite the overt willingness of our Arab and European allies to grant the Iraqi dictator amnesty, it is not theirs to grant. The victims of Hussein’s crimes, the Kurds of northern Iraq and the Shiites of southern Iraq, hold the moral and legal authority to decide the fate of Hussein.

In fact, many of the crimes committed by Hussein, such as the attempted genocide against the northern Kurds, rise to the level of “crimes against humanity.” It is the global community that also must consent to any amnesty, in the form of a UN resolution.

For the U.S. to seriously entertain amnesty and exile, let alone indicate its willingness to support such an act, would irrevocably undermine the moral authority of the United States–both in terms of the Bush administration’s ongoing efforts to build a coalition to bring meaningful change to Iraq and in our war against terrorism.

For instance, how can the U.S. justify the use of force to effect a regime change based on the logic that Hussein will eventually use weapons of mass destruction against America and its allies because he has used them against his own people–if America then considers granting him amnesty for those crimes and allows him to retire in luxury? Moreover, what impact will such a signal have on the Kurdish and Shiite forces we are trying to organize into an effective resistance?

And how can the U.S. maintain international support to “hunt down and bring to justice” Osama bin Laden while we also appear willing to consider amnesty and retirement for Hussein? Such an approach would play into the hands of those who mischievously argue that the U.S. applies double standards in its efforts to root out evil.

Even if America was seduced by its Arab and European allies to arrange for amnesty for Hussein, it would not achieve the broader American objective of a stable and democratic Iraq. It is clear that any genuinely democratic Iraq would immediately call for the extradition and prosecution of Hussein. For instance, if Russia were to grant asylum to Hussein, there would be an immediate destabilizing political standoff between Russia and the new Iraq, with the new Iraqi government potentially threatening to nullify the numerous lucrative oil concessions held by Russia. To side with Iraq would undermine our relationship with Russia, while to side with Russia would put the U.S. in the position of protecting Hussein.

Amnesty and exile of Hussein also would truncate the efforts necessary to remove the 10,000 or so Iraqis who perpetuate his regime of terror. Without the creation of a system of domestic prosecutions and truth commissions, coupled with vetting of criminals from the military, police and bureaucracy, it will not be possible to create a democratic and stable Iraq. No such mechanisms are likely to be created in the event of an amnesty for the most culpable individual.

The exile of Hussein will not avert the three-way civil war brewing in Iraq among the Kurds, Shiites and the ruling Sunnis. The only way to ensure the territorial integrity of Iraq post-Saddam is deployment of American ground forces and the international management of a democratic transformation. This will only occur when the U.S. moves forward with its plan to use force and when the people of Iraq join in the effort with an uprising against Hussein’s regime.

Since the war in Kosovo and the attack of Sept. 11, the mantra of the U.S. has been to deter future war crimes and acts of terrorism by bringing to justice the perpetrators, either by defeating them on the battlefield or prosecuting them in the courtroom. To entertain an amnesty for Hussein returns the U.S. to the path of accommodation and appeasement which helped to create the environment that enabled Slobodan Milosevic, provided succor to the Taliban and afforded opportunity to Al Qaeda.

The only way to deter future crimes and attacks against the U.S. and its allies is for would-be perpetrators to visualize Milosevic in The Hague and bin Laden in some dark cave, not to visualize Hussein enjoying caviar in a former Russian villa along the Black Sea.

Peace Before Prosecution By Morton Abramowitz and Paul R. Williams, The Washington Post, August 25, 2003

Just as President Charles Taylor was arriving in Ghana on June 4 to participate in negotiations sponsored by West African nations to end the Liberian war, the U.N-supported special tribunal for Sierra Leone publicly unveiled his sealed indictment as a war criminal. His indictment points up how the diplomatic process for resolving armed conflicts can be affected by independent judicial bodies — a consideration that will likely grow with creation of the International Criminal Court and the spread of ad hoc tribunals such as those created for Yugoslavia, Rwanda and East Timor.

Many involved in the peace process denounced Taylor’s indictment as undermining diplomatic efforts to bring peace to Liberia. His listed crimes related to support of rebels in Sierra Leone who had committed crimes against humanity and bore no relationship to the continuing conflict in Liberia. In their view, while the Sierra Leone tribunal was created after the British made peace in Sierra Leone possible, it was now putting at risk efforts to stop the Liberian civil war. Because Ghana’s government failed to arrest Taylor and no other government was willing to do it, many believe the indictment delayed Taylor’s departure from Liberia.

Others welcomed the indictment, arguing that it put the diplomats on notice that they were negotiating with an indicted war criminal, hindered them from appeasing Taylor in negotiations and eroded the morale of his troops and their ability to defend against rebel forces.

We do not know whether publication of the indictment prolonged the war or accelerated Taylor’s departure; the final chapter of the Liberian civil war is still being written. But this dilemma is likely to repeat itself. Potential indictments in Congo, Colombia, Sudan, Sri Lanka and Zimbabwe may influence diplomatic efforts to promote a quicker peace settlement in those places or change a terrible regime. Indictments might well further a settlement rather than retard one. Similarly a “peace process” should not be confused with actually producing peace; we have witnessed that confusion repeatedly over the past decade. In any event the role of justice and accountability in resolving armed conflict needs greater attention.

The discussion to date is crudely divided into two camps, with both well aware of the complexities involved. “Justice first” advocates emphasize the preeminence of justice and focus on creating tribunals and establishing jurisprudence. The international “realists” stress not allowing justice to interfere with the ability to make peace and end massive violence.

The reality is that justice plays an important role in the “peace process” — propelling it or delaying it. But there is no specific mechanism for reconciling as well as possible the choice between impunity and accountability. There will be more war crime cases in which the benefits of deterrence and reconciliation must be weighed against the human costs of more violence.

History is an uneven guide in such dilemmas. An indictment may further an important cause, as in Kosovo, where the Yugoslav Tribunal indicted Slobodan Milosevic for crimes against humanity just as some NATO members were losing their will to continue the air campaign — a campaign that went on to end the conflict and Milosevic’s ethnic cleansing. In Bosnia, many believe that not indicting Milosevic before negotiations made peace possible and prevented more violence. Alternatively, some argue that had the Yugoslav Tribunal indicted Milosevic for war crimes prior to negotiations rather than four years later, it might have forced NATO into defeating Bosnian Serb forces rather than accepting the de facto partition of Bosnia and allowing Milosevic to ethnically cleanse Kosovo.

There is also a recent example of a peace agreement with truly vile parties going awry. The Lome agreement on Sierra Leone incorporated Foday Sankoh — later to become an indicted war criminal — into the government, and thereby produced several more years of a horrible war. The absence of justice in that case furthered war.

Just as it is improper to politicize justice it is important to avoid the possibility of institutions of justice overwhelming the complexities of peacemaking. Today there is no effective acceptable mechanism to guide tribunals whose actions might have a significant and unexpected impact on peace negotiations. The international community has relied on the judgment of prosecutors and tribunal judges, but these are people who should not be responsible for navigating the ins and outs of diplomatic negotiations. To require them to do so politicizes the tribunal.

It is important to develop a mechanism for doing this job.

Member states of the International Criminal Court have rejected a role for the U.N. Security Council. One possible solution is to make use of the unique role of the secretary general and have the Security Council authorize him to advise tribunals, especially U.N. tribunals, on the appropriate timing to release indictments. The secretary general could advise that an indictment be sealed and announcement delayed until the conflict ends. Alternatively he could determine that peace would be served by making an indictment public. At no time should the secretary general be permitted to argue for impunity. This is one step that might save lives and better preserve the international momentum toward punishing such crimes.

Saddam Hussein: Don’t Just Fight Him, Indict Him As with Yugoslavia and Nazi Germany, make the case against Iraq’s dictator in court.

By Michael P. Scharf, Los Angeles Times, October 6, 2002

Assuming that regime change in Iraq is inevitable, the question of what to do with Saddam Hussein and the surviving members of his governing clique becomes more pressing. Since Hussein has so often been compared to Adolf Hitler, it makes good sense to turn to the historic analogy of World War II for some guidance.

As the Allies pushed into Nazi Germany in spring 1945, there was considerable debate about what to do with the Nazi leaders after Germany’s defeat. British Prime Minister Winston Churchill suggested a firing squad. Soviet Premier Josef Stalin agreed, adding that his advisors had already come up with a list of 50,000 German candidates for execution. The United States instead proposed an international trial, which ultimately led to the establishment of the Nuremberg Tribunal.

Although the Nuremberg proceedings served many purposes, a main one was to justify Allied conduct during and after the war by putting an international spotlight on German atrocities. Once the world learned of Nazi war crimes and genocide, it would accept the controversial Allied firebombing of Dresden, as well as Allied plans for occupation and de-Nazification of Germany.

Fifty-four years later, the international indictment of former Yugoslav President Slobodan Milosevic proved similarly useful to the United States and its allies. The International Criminal Tribunal for the Former Yugoslavia indicted him for crimes against humanity in March 1999, roughly two months into NATO’s bombing campaign against Serbia. The timing of the indictment was crucial. Popular support for NATO’s intervention in the Balkans was waning in several NATO countries in the face of intense press criticism of its use of cluster bombs and depleted-uranium munitions, attacks on civilian trains and media centers, and the accidental bombings of the Chinese Embassy in Belgrade and territory in neighboring Bulgaria. The Milosevic indictment gave the North Atlantic Treaty Organization the moral credibility it needed to sustain international support for its military intervention. It also induced Milosevic to accede to NATO demands.

A judicial confirmation of the case against Hussein would similarly build international support for action against Iraq, both before and after military action.

U.S. investigators are said to have collected bountiful evidence of the atrocities committed by the Iraqi regime over the last 20 years. These include the taking of foreign nationals as hostages; using foreign nationals as human shields; raping and killing foreign civilians; torturing prisoners of war; pillaging civilian hospitals; launching Scud missiles at civilian targets in neighboring countries; releasing oil into the Persian Gulf; sabotaging oil fields in Kuwait; deploying chemical weapons; and committing genocide-like crimes against the Kurd and Shiite populations in Iraq. But this evidence has not been entered into the public record through a fair trial that can, in the words of Nuremberg lead prosecutor Robert H. Jackson, “establish incredible events by credible evidence.”

In the aftermath of the attacks on the World Trade Center and Pentagon, the chief prosecutor of the Yugoslavia tribunal, Carla Del Ponte, proposed expanding the jurisdiction of the U.N. Security Council-created tribunal to include prosecution of Taliban and Al Qaeda leaders taken into custody. Although the Bush administration prefers military tribunals instead, Del Ponte’s proposal could be easily implemented for Hussein and company.

All that would be necessary to accomplish this is for the U.N. Security Council to pass a resolution expanding the Yugoslavia tribunal’s jurisdiction to include violations of international humanitarian law committed by Iraq during its war with Iran in the 1980s, Baghdad’s invasion and occupation of Kuwait in 1990, its role in the Persian Gulf War in 1991 and its subsequent, brutal repression of the Kurd and Shiite rebellions in Iraq.

The trials could take place down the road from The Hague at the super-secure courtroom and detention center at Camp Zeist, where the Pan Am Flight 103 bombers were tried two years ago. While the international tribunal already has enough judges to staff this new undertaking, the United States and allies could supply prosecutors to prepare indictments quickly.

The one obstacle to such a tribunal is the approval of the five permanent members of the U.N. Security Council. The British, strong supporters of the permanent international criminal court established last summer, might view expansion of the Yugoslavia tribunal as a U.S. effort to undermine the permanent court. But this objection would be invalid, because the permanent international criminal court is prohibited by statute from exercising jurisdiction over crimes committed before July 1, 2002.

The Russians and French, who have a huge financial stake in Iraqi oil, may initially oppose an expanded Yugoslav tribunal because it might imperil the current U.N. effort to induce Hussein to accept new inspections. But in light of Hussein’s history of frustrating U.N. inspection teams, who can seriously believe that he will fully cooperate this time? When he does block the inspectors, the U.S. must be ready with the trial proposal.

It is one thing for President Bush and Prime Minister Tony Blair to assert that Hussein is evil and to expect the rest of the world to believe unsupported claims about the threat he poses. It would be quite another if, on the eve of military action against Iraq, a panel of distinguished international jurists were to conclude that the evidence of the Iraqi leader’s war crimes and crimes against humanity is sufficient to confirm an indictment and issue an international arrest warrant. Thereafter, as was the case with Milosevic, every reference to Hussein would be followed by the moniker “indicted war criminal.”

By Paul R. Williams and Norman Cigar, International Herald Tribune, January 8, 1997

Slobodan Milosevic’s callous annulment of Serbia’s municipal elections and the resulting waves of protest have caught the United States by surprise.

But the only real surprise is why the United States has yet to realize that Mr. Milosevic is not the key to peace in the former Yugoslavia, but is rather the lock on the door. In trying to unlock that door, the United States must remember that in December 1992 the Department of State identified Mr. Milosevic as primarily responsible for the commission of war crimes in the former Yugoslavia. The United States, now more than ever, needs to support an investigation into Mr. Milosevic’s responsibility for some of the worst war crimes in Europe since World War II. To sweep this issue under the rug of diplomacy will undermine the deterrent value of justice, and calls for individual revenge by the victims will be harder to quiet. The genuine peace we all seek from the Dayton accord Q and democracy in Serbia Q will be the victims of America’s reluctance to act.

An indictment of Mr. Milosevic can be sought on these grounds:

Direct responsibility. Whenever the Western powers, under the leadership of the United States, decide to act on their war crimes rhetoric, they may rely upon the International War Crimes Tribunal in The Hague, which, though its previous pursuit of accused Serbian war criminals, has already laid the groundwork for indicting Mr. Milosevic on the basis that the Yugoslav and Republic of Serbia forces and agencies and their paramilitary armies controlled by him committed genocide.

Complicity. Mr. Milosevic aided the commission of war crimes by directing Serbian Republic forces and agencies under his control, including Serbia’s Ministry of Defense and Ministry of Internal Affairs, to assist the organization and operation of Serbian paramilitary armies such as Arkan’s Tigers, Vojislav Seselj’s Chetniks and Mirko Jovic’s White Eagles. Specifically, it was Mr. Milosevic who provided these paramilitary armies with weapons, training, money and transportation to Bosnia, where they were encouraged to slaughter civilians in areas secured by the regular army.

Command responsibility. Finally, Mr. Milosevic may be indicted on his overall command responsibility for the Yugoslav Army and federal forces that tried to carry out his plans for an ethnically pure Greater Serbia. As the dominant member of the panel that controls the Yugoslav Army Q the Yugoslav Supreme Military Council, and its successor, the Supreme Defense CouncilQ Mr. Milosevic was obligated under international law to prevent his forces from committing or encouraging and enabling others to commit war crimes. Unfortunately, the United States continues to delude itself that Mr. Milosevic is the only individual capable of ensuring that the Bosnian Serbs deliver on their Dayton promises. U.S. policy makers simply ignore that none of the provisions of the Dayton agreement have truly been put into effect, aside from the tasks directly attributable to the NATO peace force. The obvious reason for this failure is that although it was in Mr. Milosevic’s interest to sign the Dayton agreement to avoid losing the war and to secure the lifting of sanctions, it is not in his interest to promote respect for human rights, a strong Bosnian government, and certainly not the arrest and extradition of war criminals. It can no longer be business as usual for the West. Mr. Milosevic’s responsibility for war crimes, coupled with his outright contempt for basic democratic principles, must be met with renewed economic sanctions and diplomatic isolation.

As the Belgrade demonstrations continue, the United States must recognize that the key to enforcing the Dayton accords and assuring peace and democracy in the former Yugoslavia is not held by a war criminal. Instead, that key will be found by assisting the forces seeking to change Mr. Milosevic’s increasingly illegitimate and repressive regime.

– Mr. Williams is a senior associate at the Carnegie Endowment for International Peace. Mr. Cigar is professor of national security studies at the U.S. Marine Corps School of Advanced Warfighting. They contributed this comment to the International Herald Tribune.

Last week President Clinton announced steps America would take to induce the removal of Slobodan Milosevic from power. But the ouster of the Yugoslav leader is not enough. He must be brought to justice.

The policy of “ethnic cleansing” has resulted in the murder, torture and rape of hundreds of thousands of civilians and the forced displacement of 5 million people in the Balkans. In contrast to portrayals of the conflict in Bosnia and Kosovo as civil wars with all sides to blame, in reality the perpetrators of atrocities have overwhelmingly been Serbs and the victims overwhelmingly Bosnian Muslims and Kosovo Albanians. Nor was the ethnic violence simply an inevitable byproduct of historic hatreds. Rather, it was the handiwork of rabid nationalism generated from the top down. The two leaders responsible for engineering the practice of ethnic cleansing – Bosnian Serb leader Radovan Karadzic and Yugoslav President Milosevic – have been indicted by the International Criminal Tribunal for the former Yugoslavia.

However, Radovan Karadzic remains at large in the Serb-dominated portion of Bosnia. Like a puppet master, he still controls Bosnian Serb politics from behind the scenes, reigning over the Serb warlords who continue to thwart the return of thousands of Muslim refugees to their homes in the Serb-dominated portion of Bosnia. Because “force protection” has been the dominant policy of the NATO forces in Bosnia, NATO has never attempted to apprehend Karadzic, even when he passed through its checkpoints and appeared publicly in areas under its control.

Despite the international indictment against him, Milosevic is still president of Yugoslavia. He still directs a massive police and paramilitary network, which represses opposition. He still controls the television and radio stations, which were responsible for spreading the disease of ethnic nationalism to the Serb people. He continues to command the third largest army in Europe, which poses an ongoing threat to Bosnia, Montenegro and Vojvodina (the other non-Serb semi-autonomous province within Yugoslavia).

The Clinton administration has announced that there are no plans to compel Milosevic’s trial at The Hague. What the administration fails to recognize is that indictments alone are meaningless, if there is no prospect of trial and punishment for the accused. The apprehension and trial of these “most wanted” indicted war criminals is critical to achieving lasting peace in the Balkans. Without such action, the Dayton and Kosovo accords will constitute nothing more than a temporary pause in the ethnic conflict; the NATO and U.S. forces will have to remain indefinitely.

Without such action, democracy will never take root and ethnic nationalism will continue to thrive. There will be revenge killings, once again igniting the cycle of violence in the region. And future rogue regimes throughout the world will believe that they, too, have nothing to lose by engaging in such criminal acts.

To bring these genocidal leaders to justice, the United States should pursue the following steps:

** First, the Security Council’s economic sanctions against Serbia, lifted in 1995, should be reimposed, and no economic assistance should be provided to rebuild Serbia until Milosevic is surrendered to the International Tribunal and is replaced by a person who is not under indictment by the tribunal. ** Second, the United States should pursue Security Council action (or action coordinated among its allies) to ensure that the assets in foreign banks held by any person indicted for war crimes by the International Criminal Tribunal (including Karadzic and Milosevic) are immediately frozen. ** Third, U.S. forces operating in Bosnia should be instructed to seek out and apprehend Karadzic, as well as other indicted war criminals. ** Finally, the United States should expand its assistance to the International Tribunal to provide classified information, help with forensic investigations and provide witness protection.

This combination of tactics is necessary to bring both peace and justice to the war-torn region.

Michael P. Scharf is professor of law and director of the Center for International Law and Policy at New England School of Law. He formerly served as attorney-adviser for U.N. Affairs at the U.S. Department of State.

On May 22, Yugoslav President Slobodan Milosevic became the first sitting head of state in history to be indicted by an international tribunal when he was charged with committing war crimes and crimes against humanity in Kosovo. The indictment–which does not charge him with genocide–was accompanied by an international arrest warrant for Milosevic. Yet more than four months later, there is no sign of any real effort to bring him to trial. And no one should expect that Milosevic will be tried any time soon–if ever.

The International Criminal Tribunal for the Former Yugoslavia has no constabulary, and that is its inherent weakness. Created by the U.N. Security Council in 1993, it must rely on the voluntary cooperation of the world’s nations, including the very governments whose officials it seeks to prosecute. In the absence of the cooperation of the governments of Bosnia, Croatia and Serbia, the tribunal has had to depend on a divided Security Council and a reluctant NATO to enforce its orders.

As a result, Milosevic remains president of Yugoslavia. He continues to command a massive police and paramilitary network that represses opposition. He still runs the state television and radio stations that continue to barrage the Serbian people with ethnic nationalist propaganda. And he controls the third-largest army in Europe, which poses a continuing threat to Vojvodina and Sandzak–enclaves in Serbia populated mostly by non-Serb ethnic groups–as well as to Montenegro, the other Yugoslav republic, and to neighboring Macedonia and Bosnia.

The principle behind the prosecution of leaders before an international tribunal is that it discourages collective guilt and promotes national reconciliation. Because Milosevic and other indicted Serb leaders have not been tried, these goals have been frustrated.

Yet the United States and other members of the Security Council have shown no interest in doing what’s necessary to bring Milosevic to trial. In early June, the Security Council adopted a peace plan to end the Kosovo war that did not give NATO forces in Kosovo a mandate to arrest indicted war criminals. And even if the NATO troops had such powers, the peace agreement would prohibit them from crossing the border into the rest of Serbia, where Milosevic and company presumably still reside. At the same time, the council rejected a provision that would have triggered economic sanctions against Serbia if it failed to comply with the Milosevic arrest order. And it refused to require countries to freeze the assets of indicted Yugoslav war criminals.

A week earlier, the war crimes tribunal, in an ambitious but questionable interpretation of its powers, had ordered all countries to freeze Milosevic’s assets, most of which are in foreign banks. As far as I know, no country where he has accounts has complied.

Several Western leaders have threatened that billions of dollars in postwar economic assistance to Serbia will be withheld until Milosevic is removed from power. But, most revealing of all, they have not made his surrender to the international tribunal part of the bargain. As a result, some Serbia experts have concluded that Milosevic was at least implicitly promised some type of immunity from prosecution in return for his agreement to the Kosovo peace plan.

As a former adviser for U.N. affairs at the State Department, where I was responsible for war crimes issues, it is clear to me that Milosevic must be arrested and prosecuted. Being satisfied with his ouster alone would be an extraordinarily shortsighted foreign policy goal. Even if Milosevic ultimately agrees to relinquish his official position under pressure from the West–the chances of his being overthrown are slim, despite ongoing protests–he is likely to remain a threat much like Radovan Karadzic. Karadzic, the former president of the Bosnian Serbs who was indicted as a war criminal but never arrested, continues to plague the Bosnian peace effort.

In hindsight, it is easy to see that the prospects for peace in Bosnia would have been far greater if Karadzic had been apprehended and prosecuted, rather than simply banished from office.

The lesson of Karadzic’s non-prosecution is that indictments alone are meaningless if there is no real prospect of trial and punishment. The apprehension and trial of Milosevic, the person most responsible for atrocities in both Kosovo and Bosnia, is critical to achieving lasting peace in the Balkans. As long as he remains at large, NATO forces will have no choice but to remain in Bosnia and Kosovo to enforce an unstable peace; if they withdraw, war will return. The failure to arrest Milosevic and to punish Serbia and other countries that refuse to cooperate with the tribunal have undermined the credibility of NATO and the Security Council. Moreover, the failure has eroded any deterrent value the tribunal might have had not only in the Balkans but around the world. The lasting contribution of the court is also in jeopardy. As Richard Goldstone, the tribunal’s first chief prosecutor, told me while I was writing a book on the subject, “If this situation [non-arrest of the major Yugoslav war criminals] is not corrected, the establishment of the Yugoslav tribunal will have caused more harm than good.”

And unlike the Nuremberg tribunal that tried the Nazi elite following World War II, the Yugoslav tribunal has tried mostly foot soldiers and members of paramilitary groups. This sends the perverse signal that the tribunal will prosecute only the minor figures who fall into its hands, surrender or are easily captured by NATO troops, while the leaders most responsible for the atrocities enjoy de facto impunity.

From the beginning, the Security Council’s motives in creating the tribunal were questionable. During the negotiations to establish the court–talks in which I participated on behalf of the U.S. government–it became clear that several of the Security Council’s permanent members considered the tribunal a potential impediment to a negotiated peace settlement. Russia, in particular, worked behind the scenes to try to ensure that the tribunal would be no more than a Potemkin court.

The United States’s motives were also less than pure. America’s chief Balkans negotiator at the time, Richard Holbrooke, has acknowledged that the tribunal was widely perceived within the government as little more than a public relations device and as a potentially useful policy tool. The thinking in Washington was that even if only low-level perpetrators in the Balkans were tried, the tribunal’s existence and its indictments would deflect criticism that the major powers did not do enough to halt the bloodshed there. Indictments also would serve to isolate offending leaders diplomatically, strengthen the hand of their domestic rivals and fortify the international political will to employ economic sanctions or use force. Indeed, while the United States and Britain initially thought an indictment of Milosevic might interfere with the prospects of peace, it later became a useful tool in their efforts to demonize the Serbian leader and maintain public support for NATO’s bombing campaign against Serbia, which was still underway when the indictment was handed down.

Thus, it is hardly surprising that the Security Council has not imposed sanctions on countries that refuse to comply with the tribunal. Nor is it surprising that the Security Council gave the NATO force in Bosnia the authorization, but not the responsibility, for apprehending indicted war criminals. Indeed, no attempt has been made to arrest Karadzic, although he has passed through NATO checkpoints in Bosnia and has appeared publicly in areas controlled by NATO on several occasions.

Serbia’s noncooperation with the tribunal dates to 1996, when it decided not to arrest Serbs who had been indicted for war crimes in Bosnia. The Security Council’s refusal to impose sanctions on Serbia’s lack of cooperation, as well as the failure of NATO troops to apprehend Karadzic, undoubtedly emboldened Milosevic to pursue his policy of ethnic cleansing in Kosovo with the expectation that he, too, would never have to account for his actions. The failure to arrest Milosevic, in turn, could very well have sent the same signal to the military leaders thought to have committed crimes against humanity in East Timor and elsewhere. Thus, we may have won the Kosovo conflict, but because of our anemic policy on indicted war criminals, we are losing the war against impunity.

Michael Scharf is a professor of law and director of the Center for International Law and Policy at the New England School of Law in Boston. He is the author of “Balkan Justice” (Carolina Academic Press).

West Shouldn’t Lift Sanctions Just Yet
Post-Milosevic Serbia Must Prove Its Dedication to Cooperation, Human Rights

By R. Bruce Hitchner, Dayton Daily News, October 8, 2000

THE END OF THE REGIME of Slobodan Milosevic is cause for both celebration and concern. The people of Serbia have chosen democracy, and for this the world should be grateful.

This a welcome change after 13 years of post-communist despotism. In the coming weeks it will be important to watch how the Serbian people deal with those who served Milosevic. Revenge, bloodshed and even civil unrest cannot be ruled out.

Russia and the West have indicated that they will lift sanctions as quickly as possible. But before the world fully embraces Vojislav Kostunica, it should remember that he is a nationalist who has opposed turning Milosevic, indicted for war crimes, over to The Hague. Kostunica also has opposed the Dayton Peace Accords and believes Kosovo should be reincorporated into Serbia.

The international community should set clear benchmarks for Kostunica before it automatically lifts sanctions. It should insist that Milosevic, if he survives, be turned over to The Hague. It should call on the new leader of Serbia to recognize the Dayton accords and in particular the inviolability of the borders of Bosnia and Herzegovina. The United States, Europe and Russia should urge Kostunica to begin constructive negotiations with Montenegro on whether it remains part of the former Yugoslavia or becomes independent. Most important of all, the international community must demand that Serbia cease its campaign of political destabilization in Kosovo.
Europe and America also should be cautious about pouring new aid into Serbia at the expense of the peacekeeping and rebuilding effort in Bosnia and Kosovo.

Indeed, Milosevic’s departure opens new possibilities for resolving many of the problems in both. For Bosnia, there is hope for greater cooperation between the Bosnian Serb entity (the Republika Srpska) and the Bosnian-Croat Federation created by the Dayton accords, as well as greater Bosnian Muslim refugee return and resettlement in Srpska. Kostunica should be encouraged to follow the example of President Stjepan Mesic in Croatia, who has made reconciliation and cooperation with Bosnia and Herzegovina a top foreign-policy priority.

It is in Kosovo, however, where most may be gained or lost from the change in government in Belgrade. Since the end of the war there in 1999, Kosovo has been caught up in a cycle of violence between Kosovar Albanians and Serbs perpetrated by Milosevic and some Albanians who seek to rid Kosovo of Serbs by any means. This unfortunate situation has, moreover, been sustained by the indecisiveness of the international community over the future legal status of Kosovo.

Kostunica could take advantage of this continued uncertainty over Kosovo and his current international popularity to push for the reintegration of Kosovo into Serbia, a strategy not necessarily opposed by the Europeans and Kosovo’s neighbors. The United States should warn Serbia that this would be a mistake, as it would likely lead to increased tensions in Kosovo and possibly civil unrest, in view of the overwhelming preference of Kosovar Albanians for independence.

At the same time, it also should warn the Kosovar Albanians that any hopes they have for an independent Kosovo will depend on their ability to establish a viable government that includes and protects the rights all of the people of Kosovo, including its Serbian and Romany minorities.

The birth of a newly democratic Serbia is a welcome event that will lead to a more stable political, social and economic environment in southeastern Europe. But as events of the last decade have shown, there is still much about Serbian nationalism that needs to be held in check if Serbia is to succeed as a genuine democracy and as country that can live peacefully and constructively with its neighbors.

The international community must assist Serbia in achieving its full potential through policies that link the lifting of sanctions and aid to the pursuit of human rights and justice at home, peaceful relations with its neighbors and a recognition that nationalism has been a destructive force in recent Serbian and Balkan history that must be restrained.

R. Bruce Hitchner, Ph.D., is chairman of the Dayton Peace Accords Project and director of the Center for International Programs at the University of Dayton.

Making a Spectacle of Himself Milosevic Wants a Stage, Not the Right to Provide His Own Defense

By Michael P. Scharf, The Washington Post, August 29, 2004

Almost everyone knows the old legal saying: “He who represents himself has a fool for a client and an idiot for a lawyer.” The trial of former Serbian leader Slobodan Milosevic suggests a related adage: “A judge who permits a rogue leader to represent himself in an international war crimes trial is just as misguided.”

On Tuesday, Milosevic’s trial — more than two years old and counting — is scheduled to resume before the International Criminal Tribunal in The Hague. The opening act of the trial’s new phase will be the judges’ announcement of their decision on whether to allow Milosevic to continue acting as his own lawyer.

At the start of the trial in February 2002, the original presiding judge, Britain’s Richard May, ruled that “under international law, the defendant has a right to counsel, but he also has a right not to have counsel.” Virtually everything that has gone wrong with the Milosevic trial can be traced back to that erroneous ruling.

The decision has caused the trial to drag on twice as long as anticipated. Because of concerns about Milosevic’s high blood pressure (240 over 120), the judges have had to scale back the length and frequency of the proceedings to ensure that the former leader is not “tried to death.” As a result, the trial takes place only three times a week as opposed to the standard five; the number of hours per day has been reduced from eight to four; and there are frequent lengthy recesses to allow the defendant-lawyer to regain his strength. These delays have taken their toll on justice. Judge May recently died of cancer and a replacement had to be found; witness memories are fading; and the international community is losing interest.

The judges have given Milosevic wider latitude than an ordinary defendant or lawyer. Normally, the accused addresses the court only when he takes the stand to give testimony, and he must take an oath to tell the truth. Moreover, he is limited to offering evidence that is relevant to the charges, and is subject to cross-examination by the prosecution. By acting as his own counsel, Milosevic was able to begin the trial with an 18-hour-long opening argument, which included Hollywood-quality video and slide-show presentations showing the destruction wrought by the 1999 NATO bombing campaign.

As his own defense counsel, Milosevic has been able to treat the witnesses, prosecutors and judges in a manner that would earn ordinary defense counsel a citation or incarceration for contempt of court. In addition to regularly making disparaging remarks about the court and browbeating witnesses, Milosevic pontificates at length during cross-examination of every witness, despite repeated warnings from the bench. Milosevic, who spends his nights at the tribunal’s detention center, has no incentive to heed the judges’ admonitions.

Milosevic’s caustic defense strategy is unlikely to win him an acquittal, but it isn’t aimed at the court of law in The Hague. His audience is the court of public opinion back home in Serbia, where the trial is a top-rated TV show and Milosevic’s standing continues to rise.

Opinion polls have reported that 75 percent of Serbs do not feel that Milosevic is getting a fair trial, and 67 percent think that he is not responsible for any war crimes. “Sloba Hero!” graffiti is omnipresent on Belgrade buses and buildings. Last December, he easily won a seat in the Serbian parliament in a national election.

In creating the Yugoslavia tribunal statute, the U.N. Security Council set three objectives: first, to educate the Serbian people, who were long misled by Milosevic’s propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime; second, to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the ways in which the Milosevic regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia’s newly elected leaders to distance themselves from the repressive policies of the past. May’s decision to allow Milosevic to represent himself has seriously undercut these aims.

May felt he had no choice in the matter because the tribunal’s legal charter stated that the defendant has the right “to defend himself in person or through legal assistance of his own choosing.” But some experts — and I’m including myself — are now arguing that May got the law wrong.

The language from the Yugoslavia tribunal statute originally comes from a human rights treaty known as the International Covenant on Civil and Political Rights. The negotiating record of the International Covenant indicates that the drafters’ concern was with effective representation, not self-representation. In other words, the drafters felt that a defendant should have a right to either be represented by a lawyer or to represent himself; they did not state that each defendant must be asked to choose between the two. Unlike Britain and the United States, most countries of the world do not allow criminal defendants to represent themselves under any circumstances, and this has been deemed consistent with international law by the European Court of Human Rights.

Even if May was correct in his reading of the law as providing a right to self-representation, he was wrong to treat that right as absolute. As authority for his position, May cited the U.S. Supreme Court’s 1975 ruling in Feratta v. California, which held that there was a fundamental right to self-representation in U.S. courts. But the high court also added a caveat, which May overlooked, stating that “a right of self-representation is not a license to abuse the dignity of the courtroom.” U.S. appellate courts have subsequently held that the right of self-representation is subject to exceptions — such as when the defendant acts in a disruptive manner, when self-representation interferes with the dignity of the proceedings or when the issues in the case are too complex for a defendant to represent himself adequately.

Milosevic’s antics and poor health have repeatedly disrupted the trial, justifying appointment of counsel to represent him in court for the remainder of the proceedings. There’s precedent for taking such a step: In the trial of former Serbian paramilitary leader Vojislav Seselj, the Yugoslavia tribunal required Seselj — over his objection — to accept “stand-by counsel,” ready to step in as soon as the defendant became disruptive or the issues became too complex.

In a sense, the tribunal has already appointed standby counsel for Milosevic in the guise of Stephen Kay and the other amicus (“friends of the court”) counsel. While not bound to follow the defendant’s directives, their job has been to ensure that legal arguments favoring the defense are presented to the judges. It would be a small step to transform the amicus counsel into a full-blown defense team, and instruct it to represent Milosevic for the rest of the trial. The lawyers are already intimately familiar with the case and are willing to take on such a role. And unlike Milosevic, they will be bound to play by the rules.

If, on the other hand, the tribunal rules that Milosevic still has a right to represent himself, the precedent will affect other international cases. Saddam Hussein, whose war crimes trial is set to begin later this year, will be able to argue that he, too, has a right to represent himself before the Iraqi Special Tribunal.

If Hussein were allowed to follow Milosevic’s playbook — using the unique opportunity of self-representation to launch daily attacks against the legitimacy of the proceedings and the U.S. invasion of Iraq — this would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shiites and Sunnis. The historic record developed by such a trial would forever be questioned. And the trial would transform Hussein and his subordinates into martyrs, potentially fueling violent opposition to the new Iraqi government.

Justice demands that Milosevic and Hussein be given fair trials. That can best be guaranteed by appointing distinguished counsel to defend them, not by permitting them to act as their own lawyers.